Jeffrey P. Gale, P.A. // Florida Statute 440.34 Workers’ Compensation Fees

The first sentence of §440.34(1) Florida Statutes advises that every attorney’s fee worker2received by a Florida workers’ compensation claimant’s attorney must be approved by a judge of compensation claims (JCC). This is the case whether the fee is paid by the claimant, an employer, or a workers’ compensation insurance company. A violation of the law is a crime. Florida Statute 440.34 outlines the main types and amounts of fees available to claimants attorneys. (Statutes 440.105440.32(1)&(2), and 57.105 describe fees available as sanctions.) While fees in personal injury cases typically range from 33-1/3%-40%, the allowed percentage in workers’ compensation case is significantly less. Here is the basic formula:

Any attorney’s fee approved by a judge of compensation claims for benefits secured on behalf of a claimant must equal to 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years.

§440.34(1) Florida Statutes. A claimants attorney can receive a statutory percentage fee in a single case for three different pools of benefits. (A fourth type of fee, which is addressed in Sections 440.34(3)(a) & (7), is based on hours rather than a percentage.) The three pools: Washout. Eventually, most workers’ compensation cases settle. The settlement of a workers’ compensation case is known as a “Washout.” This fee is paid by the claimant. Benefits obtained. These are benefits the claimant receives through his or her attorney’s efforts, without falling into the “Benefits secured” category (below). The efforts include filing petitions, corresponding with E/C and its attorney, communicating with doctors and nurse case managers, providing legal advice and guidance, and engaging in discovery. This fee is paid by the claimant. Benefits secured. These are benefits furnished by E/C more than thirty-five (35) days after being served with a Petition for Benefits. Pursuant to §440.34(3)(a), this fee is paid by the E/C. Until recently, most workers’ compensation judges pooled the three types into one for purposes of determining attorney’s fees. For example, a $25,000 washout and another $20,000 in “benefits obtained” would be lumped together and result in a formula fee of $5,250 (20/15/10 of $45,000) However, this method was successfully challenged in Urguelles v. El Oasis Café and Technology Ins. Co., Fla: Dist. Court of Appeals, 1st Dist. 2015. The First District Court of Appeal ruled that the formula is to be applied separately to each pool of benefits. Using the same numbers as above, the fee totals $6,000 (20/15/10 of $25,000 + 20/15/10 of $20,000). At the urging of then Governor Jeb Bush, the Florida Legislature, in 2002, modified §440.34 Florida Statutes to handicap claimants attorneys by eliminating their ability to earn reasonable fees for representing injured workers. The Urguelles decision provides some relief from the legislation, making it a victory for injured workers.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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